B-167072, SEP. 19, 1969

B-167072, SEP. 19, 1969

MILITARY - QUARTERS ALLOWANCE - DEPENDENTS DECISION TO ARMY DISBURSING OFFICER CONCERNING QUARTERS ALLOWANCE TO ENLISTED MEMBER IN GRADE E-4 ON ACCOUNT OF DEPENDENT MOTHER WHEN MEMBER AND SPOUSE OCCUPY GOVERNMENT QUARTERS OVERSEAS AND DEPENDENT MOTHER WAS NOT ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE. WHERE DEPENDENT MOTHER DID NOT RESIDE IN GOVERNMENT QUARTERS OCCUPIED JOINTLY BY MEMBER AND HUSBAND AT OVERSEAS STATION BECAUSE DEPENDENT MOTHER'S TRAVEL TO OVERSEAS STATION WOULD HAVE BEEN REQUIRED AT PERSONAL EXPENSE BECAUSE MEMBER'S GRADE DID NOT ENTITLE HER TO DEPENDENT TRANSPORTATION THE MEMBER MAY NOT HAVE SUCH CIRCUMSTANCE REGARDED AS BEING PREVENTED BY ORDERS FROM OCCUPYING QUARTERS AND THEREFORE THE MEMBER MAY NOT BE PAID QUARTERS ALLOWANCE ON ACCOUNT OF DEPENDENT MOTHER.

TO MAJOR R. E. PASSARELLI, FC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 13, 1969, ENCLOSING A VOUCHER IN FAVOR OF SPECIALIST FOUR (E-4) CHERYL A. PRIDE, WA 8 121 489, FOR BASIC ALLOWANCE FOR QUARTERS AND REQUESTING A DECISION WHETHER PAYMENT IS AUTHORIZED IN THE CIRCUMSTANCES SET FORTH IN YOUR LETTER. THE REQUEST WAS ASSIGNED D.O. NO. A-1039 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE CIRCUMSTANCES SHOWN ARE THAT SPECIALIST FOUR CHERYL A. PRIDE, AN E-4 WITH LESS THAN 4 YEARS' SERVICE, RESIDES AT AN OVERSEAS STATION IN FAMILY- TYPE GOVERNMENT QUARTERS ASSIGNED FOR JOINT OCCUPANCY TO HER HUSBAND, SPECIALIST FIVE AUTREY R. PRIDE. THESE QUARTERS WERE ASSIGNED ON NOVEMBER 2, 1967. BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS (DEPENDENT MOTHER) WAS APPROVED FOR MRS. PRIDE BY THE FINANCE CENTER, U.S. ARMY, ON SEPTEMBER 12, 1968, EFFECTIVE JULY 12, 1968. THE ALLOWANCE WAS PAID FROM JULY 12, 1968, THROUGH FEBRUARY 28, 1969. IT WAS SUSPENDED ON MARCH 1, 1969, AND THE CLASS Q ALLOTMENT WAS REDUCED TO $40 IN MARCH 1969.

THE RECORD SHOWS THAT CHERYL PRIDE WAS TRANSFERRED FROM FORT HUACHUCA, ARIZONA, TO AN UNRESTRICTED OVERSEAS STATION BY PARAGRAPH 20, SPECIAL ORDER NO. 46, DATED AUGUST 28, 1967, AT WHICH TIME SHE WAS SERVING IN PAY GRADE E-3. DEPENDENCY OF HER MOTHER WAS NOT ESTABLISHED AT THAT TIME BUT HAS SINCE BEEN ESTABLISHED.

YOU POINT OUT THAT NOTE 4 TO TABLE 3-2-4, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE ENTITLEMENTS MANUAL, PROVIDES THAT WHEN FAMILY-TYPE QUARTERS ARE JOINTLY OCCUPIED BY THE MEMBERS (WHEN BOTH HUSBAND AND WIFE ARE MEMBERS OF THE ARMED SERVICES) NEITHER MEMBER IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS EVEN THOUGH THE DEPENDENTS DO NOT RESIDE IN THE QUARTERS, UNLESS THE DEPENDENTS ARE PREVENTED FROM OCCUPYING QUARTERS. YOU SAY THAT SUCH PROVISION APPARENTLY IS BASED ON 34 COMP. GEN. 113 AND 436. YOU QUESTION WHETHER PROVISIONS OF THE JOINT TRAVEL REGULATIONS AND ARMY REGULATIONS WHICH WOULD DENY TRANSPORTATION OF THE DEPENDENT IN THE PRESENT CASE MAY BE CONSIDERED AS PREVENTING DEPENDENTS BY ORDERS FROM OCCUPYING QUARTERS.

UNDER THE RULE OF 34 COMP. GEN. 113 WHEN A HUSBAND AND WIFE WHO ARE BOTH IN THE UNIFORMED SERVICES OCCUPY FAMILY TYPE QUARTERS, THE QUARTERS ARE REGARDED AS HAVING BEEN ASSIGNED TO THEM JOINTLY. IN THE CASE CONSIDERED IN 34 COMP. GEN. 436 THE MEMBER CLAIMING BASIC ALLOWANCE FOR QUARTERS BY REASON OF DEPENDENTS WAS IN A PAY GRADE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE BUT WAS PRECLUDED BY ORDERS FROM BRINGING ALL OF HIS DEPENDENTS TO HIS STATION. AT THAT TIME THERE WAS IN EFFECT PARAGRAPH 302 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS FOLLOWS:

"NO MEMBER OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES SHALL BE DENIED HIS BASIC ALLOWANCE FOR QUARTERS IF, BY REASON OF ORDERS OF COMPETENT AUTHORITY, HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING SUCH ARTERS.' A SIMILAR PROVISION IS NOW CONTAINED IN 37 U.S.C. 403 (D).

SECTION 406 (A) OF TITLE 37, U.S. CODE, PROVIDES THAT, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN PLACE OF TRANSPORTATION IN KIND.

PARAGRAPH M7000-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT ENLISTED MEMBERS OF THE UNIFORMED SERVICES IN PAY GRADES E-4 WITH 4 YEARS' SERVICE OR LESS, E-3, E-2, AND E-1 ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS UPON PERMANENT CHANGE OF STATION. PARAGRAPH M7000-9 OF THE REGULATIONS FURTHER PROVIDES THAT TRANSPORTATION OF DEPENDENTS IS NOT AUTHORIZED WHEN DEPENDENCY DOES NOT EXIST ON THE EFFECTIVE DATE OF PERMANENT CHANGE OF STATION ORDERS. IN ADDITION, TRANSPORTATION OF DEPENDENTS TO OVERSEAS STATIONS IS EXCLUDED FOR BOTH OF THOSE REASONS BY PARAGRAPH 5, ARMY REGULATIONS 55-46. UNTIL A MEMBER REACHES A PAY GRADE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT PUBLIC EXPENSE HE IS WITHOUT DEPENDENTS FOR TRANSPORTATION PURPOSES. 44 COMP. GEN. 67; 47 ID. 641. ALSO, SEE 43 COMP. GEN. 684. SUCH PROVISIONS, HOWEVER, DO NOT RELATE TO OCCUPANCY OF QUARTERS AND DO NOT PREVENT SUCH OCCUPANCY BY A DEPENDENT WHO IS AT THE MEMBER'S STATION.

IN THE PRESENT CASE CHERYL PRIDE'S MOTHER WAS NOT PREVENTED BY ORDERS FROM OCCUPYING THE FAMILY QUARTERS ASSIGNED FOR JOINT OCCUPANCY BY HER AND HER HUSBAND. RATHER, HER MOTHER DID NOT LIVE WITH THE MEMBER BECAUSE TRANSPORTATION TO THE OVERSEAS STATION WOULD HAVE BEEN REQUIRED AT PERSONAL EXPENSE. SUCH CIRCUMSTANCE DOES NOT CONSTITUTE ORDERS WITHIN THE CONTEMPLATION OF THE REGULATION.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH WILL BE RETAINED HERE.